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Sunday, March 3, 2019

Howard Nash, ATR Teacher, Sues The NYC DOE Pro Se and Wins An Interim Order

New York State Judge Carmen St. George
ATR Howard Nash sued the New York City Department of Education without an attorney, or "pro se", for giving him a U (unsatisfactory) rating for the 2016-2017 school year, saying the rating was arbitrary and capricious. New York State Supreme Court Judge Carmen St. George agreed, and denied the Motion To Dismiss Nash's Petition submitted by the New York City Law Department (Attorney Leo T. Ernst).

Congratulations to Mr. Nash!

What I think is important here is that Mr. Nash prepared well to argue his rating by writing rebuttals to what his evaluators, the people who observed and rated him, wrote. EVERY teacher, Assistant Principal, Attendance person, staff member, employee must, in my opinion, comment on every email, Letter To File, Disciplinary Memo, whatever. Write the rebuttal well, as this will be used in any hearing, grievance, Appeal.

To win in Court in an Article 75 or 78, you must have your arguments made and sent in writing to your accusers way before you file any complaints. You don't need a lawyer to do that, you can do it, or request help from someone you believe can help you. But simply to walk into a Court and file an Article 78 ($210 to buy the Index Number, $95 to obtain a Judge) and hope to win is not recommended.

Another factor in Mr. Nash's favor is the fact that he was an "ATR", or substitute teacher in the Absent Teacher Reserve, due to being excessed and not because of a prior decision at a 3020-a arbitration, or other disciplinary ruling. And, he had been working for the Department since 1986, tenured in 1989.

I believe that every case is unique - because every person is unique - and that anyone can win if prepared appropriately.

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Interim Order:
Date filed: 2019-01-23

Judge: Justice Carmen St. George
Case Number: 100537/2018

INTERIM Decision and Order

Petitioner Howard Nash brings this action, pursuant to Article 78 of the CPLR to challenge, reverse and annul Respondent New York City Department of Education’s (DOE) issuance of an Unsatisfactory Annual Professional Performance Review (“APPR” or “U-Rating”) to petitioner for the 2016-2017 school year. Petitioner also seeks to restore any benefits and emoluments lost since the date of issuance, as well as attorney’s fees, and costs. Respondents cross-move to dismiss the petition for failure to state a cause of action (CPLR §§3211 [a][7], 7804 [f]).Petitioner began working for the DOE in 1986 as an elementary school teacher and became tenured in 1989. Petitioner contends that he previously received “Satisfactory” APPRs since he received tenure. In 2005, petitioner received a drama/performing arts license (grades 7-12). Petitioner explains that prior to receiving said license he taught drama under a common branch license in the New York City school system since 1995. In 2016, petitioner was excessed as a performing arts teacher at I.S. 123 in the Bronx and began working in the Absent Teacher Reserve (“ATR”). Petitioner emphasizes that his ATR assignment was due to a lack of funding for arts programs and not due to any disciplinary matters, or his teaching skills. As a teacher in the ATR, petitioner served as a substitute teacher and taught performing arts in numerous schools within District 8 in the Bronx.

On September 19, 2016, petitioner met with his field supervisor, Ayo Mendez-Torres (“Mendez-Torres”). The purpose of this meeting was to develop a “Plan of Assistance — Action Plan” (“Action Plan”) because petitioner received a rating of “Developing” for the 2015-2016 school year. The Action Plan was memorialized in a letter dated September 20, 2016, wherein Mendez-Torres warned “[y]our Plan of Assistance was developed at our meeting after we discussed your rating from last year, the reason for it and that as a result, you [are] in danger of being rated “Unsatisfactory” for the 2016-2017 school year and having charges preferred against you which may lead to your termination from the New York City Department of Education” (petitioner’s exhibit B at 2.0). The Action Plan also consisted of one goal — “[t]o develop coherent instruction that will foster a student learning centered environment” (Id.). To improve his coherent instruction, petitioner was advised to participate in peer observations to hone his lesson plans, and to keep a written journal of his observations of good teaching techniques. In addition, the Action Plan provided two websites as suggested resources. Mendez-Torres also informed petitioner that his ability to achieve a satisfactory level of instruction would be decided by formal and informal observations of his lessons. The Action Plan was signed by both petitioner and Mendez-Torres.

Over the course of the 2016-2017 school year, petitioner was observed by Mendez-Torres five times. Each time, petitioner’s lesson was found to be unsatisfactory. Mendez-Torres issued written observation reports for each lesson and stated the reasons for her findings. Deficiencies were found in pupil participation, planning and preparation, and pupil growth. Petitioner submitted rebuttals to all five observation reports. In his rebuttal letters, petitioner provided alternative accounts and explanations for the incidents for which he was rated Unsatisfactory. Petitioner repeatedly complained that Mendez-Torres’ comments under “Areas of Concern” did not comport with her statements elsewhere in the observation reports.

By letter dated January 5, 2017, Mendez-Torres recounted a meeting with petitioner and a United Federation of Teachers (“UFT”) representative regarding petitioner’s attendance record. According to the letter, petitioner had been absent eleven times and late one hour and 56 minutes as of December 7, 2016. The letter also noted that eight of those absences were medically approved. Petitioner informed Mendez-Torres that said absences were due to chronic back pain and high fever. Mendez-Torres cautioned petitioner about his excessive absences and reminded him that pursuant to Chancellor’s Regulation C-601, both unauthorized and authorized absences, if so numerous as to limit the effectiveness of service may constitute grounds for disciplinary action. The letter continued that petitioner was informed of his rights available to him under the Family Medical Leave Act.

On April 25, 2017, petitioner met with Mendez-Torres and his UFT representative to discuss his attendance record and an allegation of professional misconduct that occurred on April 21, 2017. The meeting was memorialized by Mendez-Torres in two separate disciplinary letters to petitioner’s file. In the attendance letter, Mendez-Torres stated that petitioner’s recent absence on April 3, 2017 meant that he now had twelve absences for the 2016-2017 school year. Even though petitioner provided medical approval for his absence, Mendez-Torres reiterated that his excessive absences could lead to an Unsatisfactory rating. Petitioner submitted a rebuttal letter dated May 2, 2017, wherein he criticized Mendes-Torres for failing to assist him in improving his attendance record and proclaimed that said disciplinary letter suggested a pattern of harassment by Mendez-Torres.

In a separate letter dated April 25, 2017, Mendez-Torres recounted the events stemming from her informal observation of petitioner on April 21, 2017. The letter stated in relevant part:

“Specifically, it was alleged by me, that while conducting an informal observation with you on Friday, April 21, 2017…with a 3rd grade ICT (Integrated Co-Teaching Class) during 2nd period (9:10a.m. to 9:55a.m.) you failed to report to your 3rd period class on time.

At the end of the instructional period (9:55a.m.) I was informed by the classroom teacher that you requested to teach 5 more minutes. At 10:00, I asked if you had a class to teach 3rd period, you stated ‘Yes, but I asked if I could teach for 5 more minutes.’ You left the classroom at 10:08a.m. You were 13 minutes late to your 3rd period coverage.

After you heard this allegation, I gave you an opportunity to respond. You responded, ‘When I arrived to the class, Ms. Loman asked if she could finish her class. As a consequence, I left late, but no one was hurt.’ I reiterated the importance of reporting to your next class on time, you responded, ‘Are you saying you are expecting me to be a robot.’ You then apologized for your statement.

After my investigation of this matter which included, full consideration of your response, my review of the Bell Schedule of [the school], I conclude that:

Your failure to report to your scheduled class interfered with school operations;

You demonstrated professional misconduct and insubordination when you deviated from your schedule and reported late to your assignment without authorization from a Supervisor;

Your failure to follow your scheduled assignments reflects a failure to maintain a professional attitude and maintain attention to routine matters” (petitioner’s exhibit B at 15.0).

Mendez-Torres reminded petitioner that he was in danger of being rated unsatisfactory for the 2016-2017 year.

Petitioner refuted most of Mendez-Torres’ comments in his rebuttal letter dated May 2, 2017. The relevant portions of petitioner’s letter are as follows:

“This letter is in response to your disciplinary letter dated April 25, 2017, which involved my lesson exceeding the proper time. This letter memorializes what I had communicated to you personally.

When I arrived for the class, Ms. Lowman and Ms. Reina (the two teachers present), requested if they could ‘finish up’ an ongoing, ELA lesson before I began. I naturally said yes, as professional courtesy remains a natural, common practice among educational professionals. Nevertheless, as a result of waiting 5-10 minutes, my lesson consequently ran 5-10 minutes longer…

With regard to my next class, Mr. Green (my A.P.) would be happy to confirm that Ms. Palacio (whose class was next door), required only 10 minutes to make an urgent, personal phone call (after which she would resume teaching her class). Accordingly, I was only asked to remain in the classroom for 10 minutes…Upon speaking later with Ms. Palacio, I learned that it didn’t matter much as to ‘when’ I arrived, but only that I arrived within the period, so she could quickly make her phone call. I silently supervised the class…and she returned about 10 minutes later.

Accordingly, on the basis of the above, absolutely no harm or upset was caused, which normally would have to occur for misconduct to be responsibly alleged. Also, as no injury was caused I’m confused as to why you would still issue a disciplinary letter.

Notwithstanding the above, I am exasperated by your immediate response when I communicated my answer to your allegations. You ignored my explanation, talked over me, and continued to communicate the importance of ‘reporting to your scheduled class on time.’ If I politely repeated my statement (of what had occurred), you simply repeated, ‘it’s important to report to your scheduled class on time.’ This represents a disturbing pattern by you, i.e., of repeating statements that neither apply nor acknowledge my explanations, and which further ignore the nuances that specifically applied to the event taking place. It is no surprise that I eventually displayed my exasperation to your responses, and for which you issued still another disciplinary letter” (petitioner’s exhibit B at 15.2).

Petitioner also noted that Ms. Reina, Ms. Lowman, and Ms. Palacio would be happy to confirm the events as stated.

On May 24, 2017, petitioner and Mendez-Torres met again to discuss petitioner’s professional responsibilities for the 2016-2017 school year. Principal Peter Sloman was also in attendance. Petitioner was informed that Principal Sloman would be his rating officer for the 2016-2017 school year. Petitioner avers that Principal Sloman neither observed him in the classroom prior to May 24, 2017 nor subsequent to that date up to the time he received the U-Rating (see pages 22 and 30 of the Verified Petition).

On June 20, 2017, petitioner received an Unsatisfactory on his APPR for the 2016-2017 school year from Principal Sloman. Petitioner appealed the U-Rating with the DOE’s internal Office of Appeals and Review. A hearing was held on December 6, 2017, before Joseph Caldone, Chairperson of the Chancellor’s Committee, regarding petitioner’s challenge. Mendez-Torres and Principal Sloman appeared on behalf of the DOE. Petitioner appeared, along with his UFT advocate Lauren Council.

By letter dated December 6, 2017, the Deputy Chancellor for Teaching and Learning (Designee of Carmen Farina, Chancellor), Phillip Weinberg, denied petitioner’s appeal and sustained the U-Rating. Petitioner thereafter commenced this Article 78 proceeding challenging his U-Rating for the 2016-2017 school year.

A challenge to a U rating requires a showing that the determination was arbitrary and capricious or without a rational basis (see CPLR §7803 [3]); Matter of Hazeltine v. City of New York, 89 AD3d 613 [1st Dept 2009]; see generally Matter of Arrocha v. Board of Educ. of the City of N.Y., 93 NY2D 361, 363-364 [1999]). “[A] court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion” (Matter of Arrocha, 93 NY2d at 363). “Arbitrary action is without sound basis in reason and is generally taken without regard to the facts” (Matter of Pell v. Board of Educ., 34 NY2d 222, 231 [1974]).

Petitioner argues that the individual U-Ratings were contradicted, or undermined, by statements elsewhere in the observation reports (see pages 7, 10, 18, 25 of the Verified petition). Petitioner points to the observation reports and corresponding rebuttals in support of his contention that Mendez-Torres’ ratings were arbitrary, unreasonable, and an abuse of discretion. Further, petitioner complains that Principal Sloman should have been the one to observe him as he was his “Rating Supervisor” (see pages 22, 30, and 35 of the Verified petition).

Petitioner restates much of what he raised during the hearing regarding the initial Action Plan not being a collaborative effort. He complains that he did not receive useful feedback. For example, petitioner states that Mendez-Torres rejected his request to visit with other schools within their district to observe permanent drama teachers. Petitioner further claims that his so-called “revised” Action Plan (referring to subsequent Action Plans dated 11/4/2016, 11/9/2017, and 5/2/2017) were nearly identical in that Mendez-Torres repeated the suggestions she put forth in her prior Actions plans.

In addition, petitioner contends that the Unsatisfactory rating given to him for his attendance was biased and an abuse of discretion. Petitioner points to the letter dated January 5, 2017, wherein Mendez-Torres states that his absences have “negatively affected school operations” (petitioner’s exhibit B at 6.0). Petitioner describes this as “rubber stamp” language and argues that Mendez-Torres offered no proof of his. Petitioner explains “it remains questionable, how the absence of a teacher placed in the [ATR] (and who essentially acts as a permanent substitute), can ‘negatively affect school operations’ in the same way as a permanent teacher would (and for whom this clause was originally written), as described in our Chancellor’s Regulation C-601″ (verified petition at

45). While petitioner acknowledges that he was absent 16 times, he emphasizes that eleven of those days were medically approved. Petitioner states that he was absent just five days without certification, which is well-below the threshold of ten days permitted by the DOE. Even if his attendance rating is discretionary, petitioner states, Mende-Torres’ flawed and unreliable observation reports question the integrity of his Unsatisfactory attendance rating.

Respondents have not answered the petition but move to dismiss, pre-answer. Respondents argue that petitioner failed to state a cause of action upon which relief may be granted (CPLR §3211 [a][7]). Respondents contend that the decision to sustain petitioner’s rating was neither arbitrary nor capricious, but rationally based on petitioner’ poor pedagogical record. Further, respondents claim that petitioner does not dispute that standard procedures were used to evaluate his performance as an ATR teacher. Instead, they claim, petitioner takes issue with the process of evaluating teachers in general. Respondents stress that an Article 78 proceeding is not the proper forum to litigate the fairness of the DOE’s evaluation procedures. Respondents assert that this Court’s review is limited to whether the process was arbitrary or capricious as it applied to petitioner.

In addition, respondents submit a “Severance Agreement and General Release” signed by petitioner and dated June 9, 2017. Respondents maintain that pursuant to said agreement, “any claim, liability, or cause of action that could have been asserted by petitioner that accrued prior to or on June 9, 2017 has been waived as a condition of petitioner receiving $50,000 in severance” (respondents memo of law at 14). Respondents concede that the issuance of the U-rating itself may not be barred by the Severance Agreement because it was received by petitioner on June 20, 2017, or eleven days after the execution of the general release. However, respondents argue that each and every event petitioner identifies in the petition and its exhibits as have been purportedly conducted in an arbitrary or capricious manner occurred prior to June 9, 2017. Put another way, all of the observations, absences, and events relied upon by the DOE in substantiating petitioner’s U-Rating are now waived by petitioner, respondents contend.

When evaluating respondents’ motion to dismiss the petition under CPLR §3211 (a)(7), the court must accept petitioner’s allegations as true, liberally construe them, and draw all reasonable inferences in his favor (JF Capital Advisors, LLC v. Lightstone Group, LLC, 25 NY3d 759, 764 [2015]; Miglino v. Bally Total Fitness of Greater NY, Inc., 20 NY3d 342, 351 [2013]; Lawrence v. Miller, 11 NY3d 588, 595 [2008]; Nonnon v. City of New York, 9 NY3d 825, 827 [2007]). Dismissal is warranted only if the petition fails to allege facts that fit within any cognizable legal theory (Lawrence, 11 NY3d at 595; Nonnon, 9 NY3d at 827; Goldman v. Metropolitan Life Ins. Co., 5 NY3d 561, 570-571 [2005]; Mill Financial, LLC v. Gillet, 122 AD3d 98 [1st Dept 2014]). Pursuant to CPLR §3211 (a) (7), the proper standard on a motion to dismiss is failure to state a cause of action, not establish one (compare CPLR §3211 [a][7] with CPLR §3212 [b]).

In light of this standard, this Court denies respondents’ cross-motion to dismiss. Respondents fail to establish that petitioner’s challenge to his U-Rating fails to state a cause of action. For one thing, petitioner challenges his U-Rating on the grounds that respondents’ determination is arbitrary or capricious, unreasonable, an abuse of discretion, and completely lacks a rational basis. As such, the Court finds that petitioner states a cognizable legal theory (see Matter of Kolmel v. City of New York, 88 AD2d 527 [1st Dept 2011]; Matter of Fridstrom v. City of New York, Sup Ct, New York County, January 16, 2014, Moulton, J., Index No. 100558/13; see generally Matter of Castro v. Schriro, 140 AD3d 644, 647 [1st Dept 2016], aff’d 29 NY3d 1005 [2017] [applying the standard, without discussion, in an Article 78 proceeding]). Dismissal is therefore not warranted.

If the motion is denied, the court “shall permit the respondent to answer, upon such terms which may be just…” (CPLR §7804 [f]; Matter of Davis-Elliot v. New York City Dept. of Educ., 31 AD3d 266 [1st Dept 2006]). However, an exception to this rule exists if “facts are so fully presented in the papers of the respective parties that it is clear that no dispute as to the facts and no prejudice will result from the failure to require an answer (Matter of Nassau BOCES Cent. Council of Teachers v. Board of Coop. Educ. Servs. of Nassau County, 63 NY2d 100, 102 [1984]).

Here, however, respondents’ pre-answer cross-motion relies partly on documents that are not part of petitioner’s papers and challenges his factual contentions so as to address the merits of petitioner’s claims in full. For example, the Severance Agreement and General Release signed by petitioner. The Court does not address the issue of whether petitioner is precluded from challenging his U-Rating based on the events that took place prior to June 9, 2017. That issue as well as the Severance Agreement itself is outside the scope of the current proceeding. In light of this, the Court finds that this case does not fall within the above-quoted exception in the BOCES case, and that leave must be given to respondents to file an Answer.

It would be a waste of judicial resources for this Court to address the merits of petitioner’s claims twice under the circumstances presented here. Such a procedure is strongly disfavored by the courts as it would effectively give respondent “two bites at the apple” (Siegel, David, New York Practice, §567 [6th ed. 2018], citing R. Bernstein Co. v. Popolizio, 97 AD2d 735 [1st Dept 1983]). Therefore, respondents cross-motion to dismiss pursuant to CPLR §3211 (a)(7) is denied. Accordingly, it is

ORDERED that respondents’ cross-motion to dismiss the petition on the ground that it fails to state a cause of action is denied; and it is further

ORDERED that respondents shall answer the petition within 30 days from the date of this decision and order and provide a courtesy copy to the Court at 80 Centre Street, Room 308, New York, New York, 10013; and it is further

ORDERED that petitioner shall submit any reply within 20 days from the date of service of petitioner of respondents’ answer and provide a courtesy copy to the Court at 80 Centre Street, Room 308, New York, New York, 10013; and it is further

ORDERED that after the expiration of the above period, the parties shall contact the Part Clerk at 646-386-4370 and specify a mutually convenient day for oral argument.

Dated: January 23, 2019